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CalAttorney2, Lawyer
Category: Real Estate Law
Satisfied Customers: 10215
Experience:  I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
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I apologize for being so detailed, but I wish to be clear. I

Customer Question

I apologize for being so detailed, but I wish to be clear. I am retired, age 70, and live in Texas. I do not live in an HOA.
My wife and I purchased a home, situated on one city lot (Lot 1), and also the adjacent lot (Lot 2) as one parcel from the previous owner. The previous owner built the house (on Lot 1) in 1980 and subsequently purchased the adjacent (undeveloped) Lot 2 in 2008, doing extensive upscale landscaping. From a practical standpoint, an outside observer would see the parcel of two lots as a unit. There is a fence around both lots; all is well kept. The appraisal district taxes both lots as one unit -- house and double lot -- but the legal description is still lots 1 and 2.
I now need to provide long-term assistance to one of my children for medical reasons. I would like to build a guesthouse/apartment for her and a caregiver (about 800 sq feet) on the adjacent lot (Lot 2) for practical reasons.
My problem is that the first owner of Lot 2 placed restrictions on the lot when he sold it in 1979, which include that the residence thereupon be a minimum of 2,500 sq feet; the ownership of the lot (never developed) then was transferred to several different people before being bought by the owner from whom I bought both lots as a unit.
How can I best get around this now? There will be nothing tacky about what I envision doing, but I need to keep my adult child close to home.
I know I will need to consult a local attorney, but any advice you could give would be much appreciated.
Thank you.
Submitted: 2 months ago.
Category: Real Estate Law
Expert:  CalAttorney2 replied 2 months ago.

Dear Customer,
Thank you for using our forum. My name is ***** ***** I hope to assist you today.

Expert:  CalAttorney2 replied 2 months ago.

The way in which the restrictions were placed will have a significant role in whether or not they are enforceable.

If the restriction was recorded as a "reciprocal easement" - meaning that the deed restriction benefited other properties, and those properties had a similar restriction which benefited that parcel, this makes it very hard to change or challenge these limitations.

However, if the owner simply recorded a restriction but there are no other properties affected, the restriction may be unenforceable and an attorney can help you clear up this "cloud on title" - hopefully without having to go to court or do any type of "quiet title action" (they may simply recommend that you ignore the restriction).

So, doing further title searches on how the deed restriction was formed and recorded will tell you (and your attorney) what course of action to take next.

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